PLJ 2022 Cr.C. 1229
Criminal Procedure Code, 1898 (V of 1898)--
----S. 540--Summoning of any person as witness--Discretionary powers of Court--The panacea, legislature has introduced is the form of powers u/S. 540 of Cr.P.C. This section among some others is an exception to adversarial system and an attempt to make inroads through an inquisitorial say amidst such system. The object and purpose of this section is very clear, it gets a status of overarching component of criminal justice system being a brainchild of inherent right of fair trial and due process, which now is part of constitutional regime for fundamental rights. This section as couched and in the womb of j constitutional framework would be regarded as supreme law with limitations imbedded therein and the judicial restraint interpreted through legal precedents of Superior Courts on the subject section. This is the only section which is so responsive to all lame excuses in the system for non-collection of evidence and missed prosecution of the offenders. [P. 1235] A
Criminal Procedure Code, 1898 (V of 1898)--
----S. 540--The section authorizes the Court to use discretion for summoning of any person as witness at any stage of an inquiry, trial or other proceedings. For stages, the legislature has used the word "may" which means that an essential witness whose summoning the Court considers is not appropriate at any preliminary or intermediate stage, Court can decline to issue process for his appearance and such order can be reviewed at a later stage if the evidence of such witness becomes essential for just decision of the case because in that case it is imperative on the Court, for which the word "shall" has been used in later part of this section. [P. 1236] B
PLD 1984 SC 95.
Just decision of the case--
----Expression--The expression "just decisional the case" is also meaningful, which connotes the taking of decision to step ladder onto a next stage in the process. This section authorizes to call the witness during inquiry, trial and other proceedings; therefore, if during hearing of bail petition, Court considers summoning of any person for just decision of bail petition it can do so. Some other proceedings of like nature i.e., inquiry into age of the accused, competency of person as witness, request for witness protection, legal assistance to the accused or victim, : ascertaining mental health of an accused, exhumation process, reexamination of injured, consideration for granting pardon to approvers, request for withdrawal from prosecution, are the areas could be subject to summoning of any person as witness to understand the nitty-gritties, because prosecuting an accused is a serious business which should not be let loose on technical excuses. [P. 1236] C
Challan--
----Types of challan--There are different types of inquiries in the Cr.P.C., yet when the challan is put to the Court, all the proceedings before framing of charge are also the stages of inquiry. Court while making mind to summon or not to summon the accused person can call any witness to understand hyper technicalities involved in a case. Further stage when accused did not appear despite service, the Court for stepping forward has to call the relevant person to inform about the execution of process or otherwise against the accused. Process further continues when the accused put appearance and raises any question with respect to legal or other substantial lacuna in processing the case further; Court should see who would be best person to address this lacunay.
[P. 1236] D
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 241-A & 265(c)--Supply of statements and documents--Question of--"Information"--Any question for supply of statements and documents u/S. 241A & 265C of Cr.P.C. is to be addressed by the Court in this room of inquiry. Challan by police forwarded with a report u/S. 9(7) of Punjab Criminal Prosecution service (Constitution, Function and Powers) Act, 2006 is read as "information" for accusation against the proposed suspect/offender while this information is when agreed by the Court, it transformed in to a "Charge" and status of suspect/offender becomes an accused. This stage if requires any understanding with respect to availability of all relevant material or requisite sanction, Court can summon any person as witness for taking just decision. Even Court while framing charge has to attend the legal requirement mentioned in Section 265-D, Cr.P.C. to understand the material placed before it so as to formulate a precise allegation to charge or proceed to discharge the suspect/offender as the case may be, or decide to stay the proceedings u/S. 249 of Cr.P.C. The approach of Courts should be dynamic in tracking the proceedings and stages thereof to exercise powers under this section in order to make a just decision in the circumstances. [P. 1237] E
Criminal Procedure Code, 1898 (V of 1898)--
----S. 265-D--Limitations for exercising discretion--There are certain limitations for exercising discretion under this section which the superior Courts have time to time warned must be attended with application of judicious mind; some of the limitations outlined are that; if the attempt is to fill the lacuna, to linger on the process unnecessarily, evidence is not essential for the just decision of the case, evidence is not supportable to fact in issue, summoning would create inordinate delay in the process and many other as the circumstances demand. [P. 1237] F
Word and Phrases--
----"At any stage"--The phrase "at any stage" is obliviously encompasses the stage off ' final arguments or later if the case is pending for decision; therefore, when a judge is about to lay hands on writing a judgment came across that certain witnesses though were necessary but have not been examined, he can exercise powers under this section. [P. 1237] G
AIR 1958 All 439.
Evidence--
----Should not sit as silent spectator to draw, adverse inferences against the parties for withholding of a necessary witness.
[P. 1238] H
Criminal Procedure Code, 1898 (V of 1898)--
----S. 202--Powers of Court to call any witness--Courts when hold inquiry in a complaint for private prosecution u/S. 202, Cr.P.C., ample powers are available to call any witness or material at preliminary or later stage [P. 1238] I
PLD 1986 SC 256.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 161--Supply of statement--Object of--It is trite that complainant can obtain the copies of statement of witnesses recorded u/S. 161 of Cr.P.C., and Court cannot refuse supply of such statement. The object of such practice is obvious that the complainant can call for such witnesses in support of his case., Court is required not to act as prosecutor or act for defence, its job is to dispense justice and for just cause if the testimony of a witness is essential, he can be summoned at any stage. When the Court summoned a witness both paries have right to cross examine such witness; therefore, no prejudice is caused to either of them. [P. 1239] J
PLD 1987 Lahore 245, 1977 PCr.LJ 937 & 2005 YLR 933.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 540 & 439--Powers of Court--Summoning of any witness--Revision petition--Summoning of any witness some time involves complex legal question; therefore, it should be ordered after hearing both the parties and particularly the prosecutor who is the Incharge of the case, in this respect a case is cited for reference--Role is not diminished even if the case is prosecuted in private complainant; he obviously is at guard to see if any material prejudicial to state case should not be brought on the record. He otherwise being State representative is under constitutional duty to ensure fair trial and observance of due process. Police file is the source of evidence for the Courts and in every trial, Court should call for police file for its thorough reading and examination, so as to understand the nature and volume of incriminating material available therein. Court while summoning a witness should also take, benefit from the Case Review report filed by the Prosecutors u/S. 9 (7) of The Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 on the basis of evidential and public interest tests or through threshold test some time applied by them during seeking remand of accused to police custody or on any interim report observing therein the nature and extent of evidence available so far and what further evidence they expect during the investigation--Court while summoning any witness must bear in the mind that a witness called and examined or recalled or reexamined u/S. Section 540, Cr.P.C. retains his character as a prosecution or defence witness and he would be a Court witness simpliciter if he was cited neither a prosecution witness nor a defence witness--If any given up prosecution witness or defence witness is recalled, Court can allow the respective party to put question to their own witnesses under Article 150 of Qanun-e-Shahadat Order, 1984 which is not meant for asking questions only to hostile or resiled witnesses--Coming to vires of impugned order, it is observed that learned trial Court has adopted the right course by summoning the related witnesses to decide the actual fact in issue; therefore, such order does not call for any interference and both these criminal revisions are dismissed. [P. 1240] K, L, M, N & O
2007 PCr.LJ. (Kar.) 149, 1980 PCr.LJ 570 & 2005 PCr.LJ 1022.
Malik Muhammad Afzal Khokhar, Advocate for Petitioner (in Cr. Rev . No. 71763/2021).
Mr. Muhammad Tariq Zafar, Advocate for Petitioner (in Crl. Rev. No. 68819 of 2021).
Miss Noshe Malik, Deputy Prosecutor General for State.
Mr. Muhammad Najeeb Faisal Chaudhry, Advocate for Respondent.
Date of hearing: 13.12.2021.
PLJ 2022 Cr.C. 1229
[Lahore High Court, Lahore]
Present: Muhammad Amjad Rafiq, J.
WAQAS alias KASHI etc.--Petitioners
versus
STATE etc.--Respondents
Crl. Rev. Nos. 71763 & 68819 of 2021, heard on 13.12.2021.
Judgment
Petitioners through this revision petition, urged setting aside of impugned order dated 30.10.2021 passed by learned Additional Sessions Judge, Daska whereby he has summoned two witnesses namely Muhammad Saeed Ahmad and Muhammad Nawaz who were the acclaimed eye-witnesses of fire made by Waqas alias Kashi which resulted in homicidal death of Muhammad Boota father of complainant Muhammad Amin. In FIR, Waqas alias Kashi was not nominated, wherein role of firing was assigned to one Shahzad accused. Police while placing all the nominated accused in Column No. 3 of report under Section 173, Cr.P.C. swap the role of firing by Shahzad with an added accused Waqas alias Kashi which was resisted by the complainant and he drove the cart through private prosecution carrying his version of FIR with role of firing by Shahzad accused. Learned trial Court recorded evidence in both the cases separately and when case was fixed for pronouncement of judgment, the Court came across that statements of above two witnesses have not been recorded whose examination was essential for the just decision of both the cases because question who fired at the deceased is the main fact in issue and a point of prime consideration. The above two witnesses were not cited in the report under Section 173, Cr.P.C., therefore, they were skipped summoning in time.. Court observed that no prejudice would be caused to either of the parties when both through search engine of cross examination can ascertain their side of the story. Against one and the same impugned order dated 30.10.2021 (whereby Muhammad Saeed Ahmad and Muhammad Nawaz have been summoned as Court Witnesses in the state case as well as in private complaint case), Criminal Revision No. 71763/2021 has been filed by Waqas alias Kashi (accused in the state case) questioning the summoning of above two witness in state case, whereas, Criminal Revision No. 68819/2021 has been instituted by Muhammad Amin (complainant) pleading that above two witnesses could be summoned in the state case only and not in the private complaint. Both these matters being interlinked are being decided by this single order.
2. Learned counsel for the petitioners regarded this attempt as filling the lacuna left by the prosecution in both cases which abridged the right so accrued to the parties; whereas other side supported the impugned order as perfectly within the parameters of Section 540, Cr.P.C. and such power can be exercised at any stage.
3. Proponents were heard at length, Section 540, Cr.P.C. was minutely examined in the light of facts of the cases and legal questions raised. Before banking on to decision of this petition, it is essential to see what characteristic Section 540, Cr.P.C. carries in criminal justice system.
4. In a journey to prosecute an offender, process experiences shortcomings in the system due to many reasons including incompetence, different ideologies and silo mentalities. Looking to each other, a Ping-Pong exercise between the stake holders will not help to improve the system, blame game is not the solution; everybody has to put his due to develop a Modus Vivendi to give a push or big bang to set the system on track. Court should not look up and down or askance, it has to be done by us, the people of Pakistan. Presently what the paradoxical moaning the criminal justice system has faced during a trial is calculated through excuses often made;
"Sufficient evidence has not been made available; police have not collected the relevant material; prosecution has withheld the material witnesses; complainant is prosecuting wish subjects; official and bureaucratic discourse, an obstacle to get the relevant material; experts have least concern to express opinion; deprived protection, a truthful witness was available; social media dropped a hint but lead was missed; modern devices can help procured the evidence through Skype, live link or other modes, prosecution is not interested; witness has died yet evidence is not being procured in the form of Shahada ala al-shahada; some of the witnesses were intentionally skipped in the challan; witness already recorded has given a fishy statement; person present in the Court though knew the material facts yet was refused opportunity; summoning of Radiologist, forensic experts, specialists, interpreter was inevitable; child witness was required to be summoned though grown up now; new fact was born out during the evidence which has lost sight of; evidence later discovered did not find space during the trial".
For all above situations and others, the panacea, legislature has introduced is the form of powers under Section 540 of Cr.P.C. This section among some others is an exception to adversarial system and an attempt to make inroads through an inquisitorial say amidst such system. The object and purpose of this section is very clear, it gets a status of overarching component of criminal justice system being a brainchild of inherent right of fair trial and due process, which now is part of constitutional regime for fundamental rights. This section as couched and in the womb of constitutional framework would be regarded as supreme law with limitations imbedded therein and the judicial restraint interpreted through legal precedents of Superior Courts on the subject section. This is the only section which is so responsive to all lame excuses in the system for non-collection of evidence and missed prosecution of the offenders. Apart from this, some more Sections of law also carry an inquisitorial say which includes Sections 94, 337/338 & 539B of Cr.P.C and Article 158 & 161 of Qanun-e-Shahadat Order, 1984. Some special provisions of Punjab Forensic Science Agency Act, 2007.
5. The section authorizes the Court to use discretion for summoning of any person as witness at any stage of an inquiry, trial or other proceedings. For stages, the legislature has used the word "may" which means that an essential witness whose summoning the Court considers is not appropriate at any preliminary or intermediate stage, Court can decline to issue process for his appearance and such order can be reviewed at a later stage if the evidence of such witness becomes essential for just decision of the case because in that case it is imperative on the Court, for which the word "shall" has been used in later part of this section. Case "Muhammad Azam v. Muhammad Iqbal and others" (PLD 1984 SC 95) is referred in this context. The expression "just decision of the case" is also meaningful, which connotes the taking of decision to step ladder onto a next stage in the process. This section authorizes to call the witness during inquiry, trial and other proceedings; therefore, if during hearing of bail petition, Court considers summoning of any person for just decision of bail petition it can do so. Some other proceedings of like nature i.e., inquiry into age of the accused, competency of person as witness, request for witness protection, legal assistance to the accused or victim, ascertaining mental health of an accused, exhumation process, reexamination of injured, consideration for granting pardon to approvers, request for withdrawal from prosecution, are the areas could be subject to summoning of any person as witness to understand the nitty-gritties, because prosecuting an accused is a serious business which should not be let loose on technical excuses. Though there are different types of inquiries in the Cr.P.C., yet when the challan is put to the Court, all the proceedings before framing of charge are also the stages of inquiry. Court while making mind to summon or not to summon the accused person can call any witness to understand hyper technicalities involved in a case. Further stage when accused did not appear despite service, the Court for stepping forward has to call the relevant person to inform about the execution of process or otherwise against the accused. Process further continues when the accused put appearance and raises any question with respect to legal or other substantial lacuna in processing the case further; Court should see who would be best person to address this lacuna. Any question for supply of statements and documents under Sections 241A & 265C of Cr.P.C. is to be addressed by the Court in this room of inquiry. Challan by police forwarded with a report under Section 9(7) of Punjab Criminal Prosecution service (Constitution, Function and Powers) Act, 2006 is read as "information" for accusation against the proposed suspect/offender while this information is when agreed by the Court, it transformed in to a "Charge" and status of suspect/offender becomes an accused. This stage if requires any understanding with respect to availability of all relevant material or requisite sanction, Court can summon any person as witness for taking just decision. Even Court while framing charge has to attend the legal requirement mentioned in Section 265-D, Cr.P.C. to understand the material placed before it so as to formulate a precise allegation to charge or proceed to discharge the suspect/offender as the case may be, or decide to stay the proceedings under Section 249 of Cr.P.C. The approach of Courts should be dynamic in tracking the proceedings and stages thereof to exercise powers under this section in order to make a just decision in the circumstances.
6. There are certain limitations for exercising discretion under this section which the superior Courts have time to time warned must be attended with application of judicious mind; some of the limitations outlined are that; if the attempt is to fill the lacuna, to linger on the process unnecessarily, evidence is not essential for the just decision of the case, evidence is not supportable to fact in issue, summoning would create inordinate delay in the process and many other as the circumstances demand.
7. The phrase "at any stage" is obliviously encompasses the stage of final arguments or later if the case is pending for decision; therefore, when a judge is about to lay hands on writing a judgment came across that certain witnesses though were necessary but have not been examined, he can exercise powers under this section. For a like situation a case reported as AIR 1958 All 439, "Ram Jeet and others vs. The State" is quoted; the relevant portion is asunder:
"'After the entire evidence had been recorded, arguments were heard and concluded on the 10th November, 1956, and the learned Judge fixed the 21st November, 1956 for the pronouncement of judgment. But when he sat down to prepare the judgment and save a thorough consideration to the evidence on the record it appeared to him that for the just decision of the case the evidence of certain persons who had not been examined hitherto was essential. Hence on the 21st November the date originally fixed for the delivery of judgment he decided to summon and examine those persons under Section 540. Cr. P. C. The defence counsel objected that this could not be done under that provision of the Code, whereas the Public Prosecutor argued the reverse, and both learned counsel cited decisions in support of their respective viewpoints ".
Finally, it was ruled that court should not sit as silent spectator to draw, adverse inferences against the parties for withholding of a necessary witness, the expression of Court was in following terms:
"No doubt, illustration (g) to Section 114 of the, Evidence Act entitles the Court to presume that evidence which could be and is not produced would, if produced, be unfavourable to the person withholding it. Nevertheless, Section 114 notwithstanding, for the benefit of subordinate Courts I should like to stress that in the trial of criminal cases it should not be necessary for them to rely on mere presumptions when the second part of Section 540 of the Code obliges them to summon the witness in question, and at least criminal Courts (unlike civil Courts, for the analogous provision of Order XVI, Rule 14 of the Code of Civil Procedure gives the civil Court merely discretionary authority) are not entitled to level the type of criticism just referred to ".
8. Courts when hold inquiry in a complaint for private prosecution under Section 202, Cr.P.C., ample powers are available to call any witness or material at preliminary or later stage. For this purpose, Courts can call for police record as well. Reliance is on case "Muhammad Ibrahim and other v. Qudarat Ullah Ruddy and others" (PLD 1986 SC256), wherein, it has been held as under:
"Looking at the provisions of the new Section 202 from all angles, I would hold that in the event of an inquiry, the person conducting the inquiry should not only record the evidence of witnesses produced by the complainant, but should also examine the Investigating Officer, or, in the alternative, call for and peruse the Ziminis, with his assistance, to inquire into the reasons and circumstances which may have weighed with him in holding some of the accused, whose names he has placed in Column No. 2, as innocent and to examine the nature of the evidence produced by such accused in their defence. Some reference of this evidence or examination, should appear in the inquiry report, in deference to the case of the accused who have been found innocent, for without it the report should be indeed unfair. Similarly, in the event of an investigation under Section 202, the person conducting the investigation should apply his mind to the whole file of the case, including the statements of the witnesses produced by the complainant and by any of the accused, recorded under Section 161, and witnesses which may freshly be offered for examination, and all other relevant facts and circumstances as may appear on the record or be brought or produced before him, to determine, whether, after keeping in view both the material produced by the complainant and the accused, a prima facie case appears against all or any of the accused named in the private complaint, reasonably showing their involvement in the offences imputed to them, which, in fairness to both the parties, should go for trial and against whom the defence offered cannot be treated as unequivocally justifying the displacement of the complainant's case. Unless proper safeguards are provided to the accused to enable him to produce his defence, during investigation, or to have the material relating to the same fully brought to the attention of or considered by the Inquiry Officer, during the inquiry, a fair and equitable compliance of Section 202 of the Code cannot be said to have been made, since many years, the procedure adopted by the Inquiry Officer has shown scant regard for the accused's defence. Courts have permitted truth to be sacrificed at the altar of procedure, by avoiding to record or consider any evidence or material that may prejudice the complainants' case. According to the principles of Islamic Justice, truth cannot be permitted to be stifled to any manner, least of all to proceedings which are intended to determine it. With the present shift in thinking, Courts must change their attitude and give a fair share of attention to the accused's defence, so that truth is permitted to freely surface and justice is done to both sides freely and fairly".
Similar view has been reiterated by a Full Bench of this Court in a case reported as 2019 PCr.LJ 665 "Muhammad Jawad Hamid versus Mian Muhammad Nawaz Sharif".
9. It is trite that complainant can obtain the copies of statement of witnesses recorded under Section 161 of Cr.P.C., and Court cannot refuse supply of such statement. Reliance is on a cases Muzaffar Khan v. The State and others " 1977 P Cr. L.J 937; Aziz-ur-Rehaman v. The State" (PLD 1987 Lahore 245) and "Muhammad Ashiq and 2 others v. Muhammad Anwar and 2 others" (2005 YLR 933). The object of such practice is obvious that the complainant can call for such witnesses in support of his case. Court is required not to act as prosecutor or act for defence, its job is to dispense justice and for just cause if the testimony of a witness is essential, he can be summoned at any stage. When the Court summoned a witness both parties have right to cross-examine such witness; therefore, no prejudice is caused to either of them.
10. Summoning of any witness some time involves complex legal question; therefore, it should be ordered after hearing both the parties and particularly the prosecutor who is the Incharge of the case, in this respect a case is cited for reference "Qamar Mukhtar Khan v. The State" (2007 PCr.LJ Kar 149) his role is not diminished even if the case is prosecuted in private complainant; he obviously is at guard to see if any material prejudicial to state case should not be brought on the record. He otherwise being State representative is under constitutional duty to ensure fair trial and observance of due process. Police file is the source of evidence for the Courts and in every trial, Court should call for police file for its thorough reading and examination, so as to understand the nature and volume of incriminating material available therein. Court while summoning a witness should also take, benefit from the Case Review report filed by the Prosecutors under Section 9(7) of The Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 on the basis of evidential and public interest tests or through threshold test some time applied by them during seeking remand of accused to police custody or on any interim report observing therein the nature and extent of evidence available so far and what further evidence they expect during the investigation.
11. Court while summoning any witness must bear in the mind that a witness called and examined or recalled or reexamined under Section 540, Cr.P.C. retains his character as a prosecution or defence witness and he would be a Court witness simpliciter if he was cited neither a prosecution witness nor a defence witness. Reference is made to cases reported as "Jewan and 9 others v. The State (1980 PCr.LJ 570) and "Tahir Waheed and others v. The State and another" (2005 PCr.LJ 1022). If any given up prosecution witness or defence witness is recalled, Court can allow the respective party to put question to their own witnesses under Article 150 of Qanun-e-Shahadat Order, 1984 which is not meant for asking questions only to hostile or resiled witnesses.
12. Coming to vires of impugned order, it is observed that learned trial Court has adopted the right course by summoning the related witnesses to decide the actual fact in issue; therefore, such order does not call for any interference and both these criminal revisions are dismissed. However, it is the duty of the Court to supply copies of statements of such witnesses to the defence and the complainant in private complaint for the purpose of cross-examination on such witnesses so as to avoid bringing on record any evidence by surprise.
(A.A.K.) Revision dismissed
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